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November 29, 2020

"The Legality of Presidential Self-Pardons"

The title of this post is the title of this timely new article authored by Paul J. Larkin, Jr. now available via SSRN. Here is its abstract:

The traditional understanding of the Article II Pardon Clause is that the President may grant clemency to anyone who has committed a federal offense.  Yet, a question exists whether that “anyone” includes the President.  The issue has arisen on three occasions: in the 1970s, when President Richard Nixon was under investigation for his involvement in crimes associated with Watergate; in the 1980s, when the Iran-Contra Investigation raised the question whether President George H.W. Bush knew about an illegal arms-for-hostages arrangement; and more recently when President Donald Trump publicly stated that he had the legal authority to pardon himself to end a Department of Justice investigation into Russia’s involvement in the 2016 presidential election.  No court has ruled on the legitimacy of a presidential self-pardon, and commentators have disagreed over the issue.  In my opinion, the Article II Pardon Clause allows the President to pardon himself, but the Article I Impeachment and Removal Clauses permits Congress to remove the President for doing so.

Clemency was a prerogative of the English Crown.  The King’s grant of a pardon was conclusive and not subject to revision by Parliament or the English courts.  The Pardon Clause reflects the prerogative nature of that power.  Its text contains only two restrictions — one limiting clemency to federal offenses, the other denying the President the ability to halt impeachment proceedings — and neither one prevents self-pardons.  Supreme Court case law does not justify creating a self-pardon exception.  As interpreted by the Court, the Pardon Clause is the last surviving remnant of the royal prerogatives.  To be sure, the Take Care Clause imposes a fiduciary obligation on a President, one comparable to the obligation borne by a private trustee, to act in the best interests of his client — the public — and a President can breach that duty by excusing himself from criminal liability.  But the Impeachment and Removal Clauses provide the appropriate remedy for any abuse of presidential authority, including any misuse of the pardon power.  That conclusion will not satisfy anyone who believes that there must be a judicial remedy available for every wrong, but it is the best reading of the text of our Constitution.

November 29, 2020 at 07:26 PM | Permalink

Comments

Not that such a pardon would help Trump all that much, as even without a federal pardon Biden can just sit back and let state prosecutors at Trump.

Posted by: Soronel Haetir | Nov 29, 2020 11:48:06 PM

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